Pramatha Nath

Mul1herjee

v.

State of West

Bengal

Dos Gupta

].

Marth z4.

250 SUPREME COURT REPORTS [1960]

tute also a minor offence under s. 323 I.P.C. The

Magistrate when he took cognizance under s. 190(l)(b)

Cr. P.O. of the offence under s. 332 I.P.C. cannot but

have taken cognizance alHo ofthe minor offence under

s. 323 I.P.C. Consequently, even after the order of

discharge was made in respect of the offence under

s. 332 I.P.C. the minor offence under s. 323 of which

he

had also taken cognizance remained for trial as

there was no

itfdication to the contrary. That being

an offence triable under Chapter XX Cr. C.P. the

Magistrate rightly followed the procedure under

Chapter XX.

The appeal is accordingly dismissed.

Appeal dismissed.

IN RE: THE BERUBARI UNION AND

EXCHANGE OF ENOLA VES

REFERENCE UNDER ARTICLE 143(1) OF

THE CONSTITUTION OF INDIA

(B. P. SINHA, 0. J., s. K. DAS, P. B. GAJENDRA­

GADKAR, A. K. SARKAR, K. SuBBA RAo,

'l\L HIDAYATULLAH, K. 0. DAS

GUPTA and J. C. SHAH, JJ.)

President's Reference-Inda-Pakistan Agreement, r958-Divi­

sion of Berubari Union and exchange of Cooch-Behar Enclaves-If

involve cession of territory-Implementation-Amendment of Consti­

tution-Constitution of India, Arts. I, 3, 368.

As a result of the Radcliffe Award dated August 12, 1947,

Berubari Union No. 12 fell within West.Bengal and was treated

as such by the Constitution which came into force on January 26,

1950, and has since been governed on that basis. Certain dis­

putes arose between India and Pakistan subsequent to the Rad­

.cJiffe Award but Berubari was not in issue before the Bagge

Commission set up by agreement between the parties to decide

those disputes. That commission made its award on January 26,

1950. Pakistan raised the question of Berubari for the first time

in 1952 alleging

that under the Radcliffe Award it should form

part of East Bengal and was wrongly included in West Bengal. On August 28, 1949, the Ruler of the State of Cooch-Behar

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3 S.C.R. SUPREME COURT REPORTS 251

entered into an agreement of merger with the Government of

India and that Government took over the administration of

Cooch-Behar which was ultimately merged with West Bengal on

January I, 1950, so as to form a part of it. It was found that

certain areas which belonged to the State of Cooch-Behar became

enclaves in Pakistan after the partition, and similarly certain

Pakistan enclaves fell in India.

In order to remove the tension and conflict caused thereby

the Prime Ministers of India and Pakistan entered into an agree­

ment, called the Indo-Pakistan Agreement on September IO, 1958,

and items 3 and 10 of that agreement provided for a division of

Berubari Union half and half between

India and

Pakistan and

for an exchange of Cooch-Behar Enclaves in Pakistan and Pakis­

tan Enclaves in India.

Doubts having subsequently arisen regarding the implemen­

tation

of the said items, the

President of India referred the

matter to the Supreme Court under Art. 143(1) of the Consti­

tution:

Held, that item No. 3 of the Agreement leaves no manner Of

doubt that the parties to it were thereby seeking-to settle the dis­

pute

apart from the Award, amicably, and on ad hoc basis by

dividing the territory half and half. There is absolutely no indi­

cation in

it that they were seeking to interpret the Award and

determine the boundary on that basis. The question relating to

Berubari must, therefore, be considered on

the basis that it in­

volves cession of a

part of India's territory to

Pakistan and this

applies with greater force

to the agreement relating to the

exchange

of the enclaves.

There can be no doubt

that the implementation of the

Agreement would

alter the boundary of West Bengal and affect

Entry

13 in the First Schedule to the Constitution, since as a

matter of fact Berubari was treated as a

part of West Bengal and

governed as such

from the date of the Award and was thus com­

prised th,erein before the commencement ,of the Constitution.

Any argument to the contrary cannot be accepted.

The State of Australia v. The State of Victoria, (19n) 12

C.L.R. 667 and The State of South Australia v. State of Victoria,

(1914] A.C. 283, distinguished and held inapplicable.

Although

it may be correct to describe the preamble as a key

to the mind of the Constitution-makers, it forms no part of the Constitution and cannot be regarded as the source of any sub­

stantive power which the body of the Constitution alone can

confer

on the Government, expressly or by implication. This is · equally true of prohibitions and limitations. It was not, therefore,

correct to say

that the preamble could in.any way limit the

power of

Parliament to cede parts of the national territory. Nor

was

it correct to say that Art. 1(3)(c) did so.

Article 1(3)(c) correctly construed, confers no power to acquire

foreign territories

but merely recognises automatic absorption of

such territories as may be acquired

by India in its sovereign

right and, consequently, does not exclude by implication, the

power

to cede national territory. Moreover, the power to amend

•

In re:

Bernbari Union

&-Exchange of

Enclaves

...

•

252 SUPREME COURT. REPORTS [1960]

1960 the Constitution under Art. 368 gives the Parliament the power

to amend Art. 1(3)(c) so as to include the power to cede national

In re. territory as well. It was, therefore, incorrect to suggest that

Berubari Union the sovereign State of India lacked the t\VO essential attributes

& Exchange of of sovereignty, namely, the power to acquire foreign territory

E1iclaves and the power-to cede national territory, and that no process of

legislation could

validate the Agreement in question.

Although such cession of territory, which amounts in

la\v to

a transfer of sovereignty must cause great hardship from the

human point of view, the right of a sovereign State to do so in

the exercise of its treaty-making power and subject to such Jimi­

tations as the Constitution may, expressly or by necessary impli­

cation, impose, can

never be in doubt and the question as

to·

whether the treaty can be implemented by ordinary legislation

or by constitutional amendment must depend on the provisions

of

the Constitution itself.

It may be assumed in construing Art. 3 that the Consti­

tution contemplated changes of the territorial limits of the

constituent

States and there was no guarantee of their territorial

integrity. Broadly speaking, that Article deals with the terri­

torial adjustment inter sc of the Constituent States of India, and

not merely their reorganisation on linguistic or other basis.

Article 3(c) deals

with the diminution of the area of a State and

it is unreasonable to suggest that it is wide enough to cover

cession of national territory.

The

t.rue position is that the Consti­

tution does not expressly provide either for acquisition of foreign

territory or for cession of national territory; powers are inherent

in that behalf in every sovereign State.

Consequently, the Agreement cannot be implemented by a

law relatable to

Art. 3 and

legislation relatable to Art. 368 would

be inevitable.

It follows, therefore, that the Parliament acting under Art.

368 can make a law to give effect and implement the Agreement

in question covering both Berubari and the Enclaves or pass a

law amending

Art. 3 'so as to cover cases of cession of the territory

of India and thereafter make a

law under the amended Art. 3 to

implement the Agreement.

ADVISORY JURISDICTION : Special Reference ~o. 1

of 1959. •

Reference by the President of India under Arti­

cle 143(1)

of the Constitution of India on the

imple­

mentation of the Indo-Pakistan Agreement relating to

Berubari Union and Exchange of Enclaves.

The circumstances which led to this Reference by

the President and the questions referred appear from

the full text of the Reference dated April 1, 1959,

which is reproduced below

:-WHEREAS the Boundary Commission appointed

under the Chairmanship of Sir Cyril Radcliffe in

4

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3 s.c.R. SUPREME COURT REPORTS 253

accordance with sub:section (3) of section 3 of the

Itidian Independence Act, 1947, made an Award,

hereinafter referred to as "the Radcliffe Award", a

copy whereof is annexed hereto as Annexure

I,

deter­

mining the boundaries of the Province of East Bengal

and the Province of West Bengal constituted by

clause (b) of sub-section (1) of section 3 of the said

Act;

AND WHEREAS certain boundary disputes having

arisen

out of the interpretation of the Radcliffe Award,

the Dominion of India and

"the Dominion of Pakistan

set up, by agreement, a Tribunal under the Chairman­

ship of the Hon'ble Lord Justice Algot Bagge for the

adjudication and final settlement of the. said boun­

dary disputes and for demarcating the boundary

accordingly ;

AND

WHEREAS the said Tribunal gave decisions on

the ·said boundary disputes, such decisions being

hereinafter referred to as "the Bagge Awards'', a copy

. whereof is annexed hereto as Annexure II ;

AND WHEREAS, with respect to the District of Jalpai­

guri, the demarcation of the boundary line between

the Province of West Bengal and the Province of

East Bengal i8 described in paragraph 1 of the Schedule

forming · Annexure A to the Radcliffe Award as

follows:-

"A line shall be drawn along the boundary be­

tween the Thana of Phansidew a in theDistrict of

'Darjeeling and the Thana Tetulia in the District of

Jalpaiguri from the point where that boundary

meets the Province of Bihar and then along the

boundary between the Thanas of Tetulia and Raj­

ganj; the Thanas of Pachagar and Rajganj, and the

Thanas of Pachagar and Jalpaiguri, and shall then

continue along the northern corner of the Thana

Debiganj to the boundary of the State of Cooch­

Behar. The District of Darjeeling and so much of

the District of Jalpaiguri as lies north of this line

shall belong

to West Bengal, but the Thana of

Patgram and any other portion of Jalpaiguri

·Dis­

trict which lies to the east or south shall belong to

East Bengal" ;

~3 ,

In re:

Berubari Union

&-Exchange of

Enclav<S

In 1'e:

Berubari Union

& Exchange of

Enclaves

254 SUPREME COURT REPORTS [1960)

AND WHEREAS a further dispute arose between the

Government of India and the Government. of Pakistan

whether, having regard to the above description of

the boundary line with respect to the District of

Jalpaiguri, the Radcliffe Award assigned the territory

in the said District known as Bernbari Union No. 12

(being

the territory covered by blue parallel lines in

the sector map, a copy whereof is annexed hereto as

Annexure III) to the Province of West Bengal, as

contended by the Government of India or it assigned

a

major portion of the said

territory to the Province

of East Bengal, as contended by the Government of

Pakistan;

AND WHEREAS certain other disputes also arose

between

the Government of India and the Govern­

ment of

Pakistan regarding the interpretation and

implementation of certain other parts of the Radcliffe

Award and of some parts of the Bagge Awards;

AND WHEREAS the problem arising from the exist­

ence

of enclaves in Pakistan of certain territories of

India which formed part of the territories of the

former Indian State of Cooch-Behar (shown in red in

the sector map, a copy whereof is annexed hereto as

Annexnre IV) and of enclaves in India of certain

territories of Pakistan (shown in blue in the said sector

map) was, along

with other border problems,

er.gag­

ing the attention of the Government of India and the

Government of Pakistan;

AND WHEREAS, with a view to removing causes of

tension and resolving border disputes and problems

relating to

Indo.Pakistan border areas and establish­

ing peaceful conditions along those areas,

the

Prime

Minister of India, for and on behalf of the Govern­

ment of India, and the Prime· Minister of Pakistan,

for and on behalf of the Government of Pakistan,

entered into an agreement settling some of the said

disputes and problems in the manner set out in the

note jointly recorded by the Commonwealth Secretary,

Ministry of External Affairs, Government of India,

and the Foreign Secretary, Ministry of Foreign

Affairs and Commonwealth Relations, Government of

Pakistan, a copy whereof is annexed hereto as

Annexure V, the agreement as embodied in the said

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3 S.C.R. SUPREME COURT REPORTS 255

note being hereinafter referred to as "the In\:fo-Pakis-

tan Agreement" ; ·

AND WHEREAS the ludo-Pakistan Agreement settles

the aforesaid dispute relating

to the territory known

as Berubari

Union No. 12 in the manner specified in

item

(3) in paragraph 2 thereof, the agreement

relat­

ing to such settlement being hereinafter referred to

as "the Agreement relating to Berubari U11ion" ;

AND WHEREAS the ludo-Pakistan Agreement settles

the aforesaid problem arising from the existence of

Indian enclaves in Pakistan and Pakistan enclaves in

India by exchange of enclaves in the manner set out

in Item (10) read .with Item (3) in paragraph 2 thereof,

the agreement relating to such exchange of enclaves

being hereinafter referred

to as

"the Agreement relat­

ing to Exchange of Enclaves";

AND WHEREAS a doubt has arisen whether the

implementation of the Agreement relating to Berubari

Union requires any legislative action either by way of

a suitable law of Parliament relatable to article 3 of

the Constitution or by way of a suitable amendment

of the Constitution in accordance with the provisions

of article 368 of the Constitution or both ;

AND WHEREAS a doubt has arisen whether· a suitable

law

of Parliament relatable to article 3 of the

Constitu­

tion is sufficient to implement the Agreement relating

to Exchange of Enclaves or whether, in addition or

in the alternative, a suitable amendment of the

Constitution in accordance with the provisions of

article 368 of the Constitution is necessary for the

purpose;

AND WHERE.AS there is likelihood of the Constitu­

tional validity of any action taken for the implementa­

tion of the Agreement relating to Berubari Union and

the Agreement relating to Exchange of Enclaves

being questioned in courts

of law, involving avoidable

and protracted litigation ;

AND

WHEREAS, in view of what has been herein­

before stated, it appears to me that the questions of

law hereinafter set out have arisen and are of such

nature and of such importance that it is expedient

that the opinion of the Supreme Court of India should

be obtained thereon ; .

In re:

Berubari Union

& Exchange of

Enclaves

In re:

Berubari Union

& Exchange of

Enclaves

256 SUPREME COURT REPORTS [1960]

Now, THEREFORE, in exercise of the powers conferred

upon me

by clause (1) of article 143 of the

Constitu­

tion, I, Rajendra Prasad, President of India, hereby

refer

the following questions to the

Supreme Court of

India for consideration and report thereon, namely:-

"(l) Is any legislative action necessary for the

implementation of the Agreement relating

to Berubari Union?

(2) If so, is a law of Parliament relatable to

article 3 of the Constitution sufficient for the

purpose 01· is an amendment of the Constitu­

tion in accordance with article 368 of the

Constitution necessary, in a,ddition or in the

alternative?

(3) Is a law of Parliament relatable to article 3

of the Constitution sufficient for implementa­

tion of the Agreement relating to Exchange

of Enclaves or fa an amendinent of the

Constitution in accordance with article 368

of the Constitution necessary for the purpose,

in addition or in the alternative ?"

[A nnexures omitted]

1959. December 8, 9, 10 and 11. M. 0. Setalvad,

Attorney-General of India, 0. K. Daphtary, Solicitor­

General of India, H. N. Sanyal, Additional Solicitor­

General of India, G. N. Joshi, R.H. Dhebar and T. M.

Sen,

for the

Union o"f India. It is important to note

that the integrity of the territory of the States is not

guaranteed by the Constitution of India and Parlia­

ment is made Supreme even with respect to the ques­

tions relating to the territory. Part I of the Constitu­

tion is a self-contained code wit.h respect to the terri­

tory of the Union. The residuary powers are vested

in Parliament. The provisions in the Constitution of

the United States, Australia and Canada are entirely

different.

The Prime Ministers' agreement with regard to

Berubari Union No. 12 does not involve any cession

of territory, but it merely ascertains the boundary be­

tween East Bengal and West Bengal, which had been

left vague

by the Radcliffe Award. As such, this part

of the agreement can

be impl~mented by executive

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--;

3 S.C.R. SUPREME COURT REPORTS 257

action: Where there is merely settlement

of

bounda"

ries, it is not a case of alienation of cession of land.

The State of South Australia v. State of Victoria, 12

C.L.R. 667 ; Penn v. Baltimore, 1 Ves. Sen. 444; Gran­

dall on Treaties, I Edn., pp. 115 and 161 ; The Lessee

of Lattimer et al v. Poteet, 10 L. Ed. 328 .. The territo­

ries ofBerubari Union No. 12 were being governed by

West Bengal unconstitutionally and did not fall within

item 3 of the First Schedule to the Constitution.

Berubari Union was administered by West Bengal as

its own territory, though legally it was not part of its

territory and it was not administered " as if it formed

part of West ·Bengal " within the meaning of item 3 of

Sch. I. The giving of a part of the Berubari Union to

East Bengal under the Prime Ministers' agreement did

not involve any amendment to the First Schedule to

the Constitution. A.LR. 1959 Cal. 506 at 517 and

518.

The executive power of the Union is co-extensive

with

the powers of Parliament with this limitation that

the executive cannot act against the provisions of the

Constitution or of any law made by Parliament. [1955]

2

S.C.R. 225 at 234-237. The power of making trea­

ties is within the sovereign power and resides both in

the executive and in Parliament. What the executive

can do

in respect of treaties and agreements is part of

the Governmental function. The executive can by

entering into a treaty or agreement settle a boundary

dispute which does not involve acquisition or cession

of territory.

If the agreement relating to Berubari does not

amount to a mere settlement or delineation of

boundary, then

legislation, by Parliament relatable to

Art. 3 of the Constitution would be sufficient but

legislation under Art. 368 would be incompetent.

Part I of the Constitution is a self-contained code

dealing with

the territories of the

Union. Article 1

defines the territory

of India as the territory of the States; the description of the territories of the States

describes

the territory of India. Article 2

contem­

plates addition to the territories of the Union by the

admission of new States or new areas. Article 3(a)

contemplates

in its last part uniting any territory to

In

re:

Berubari Union

& Exchange of

Enclaves

In re:

Beruba1i Union

6-Exchange of

Enclaves

258 SUPREME COURT REPORTS [1960]

a part of any State and any territory includes foreign

territory that may be acquired. Article 3(b) contem­

plates increase in the area of auy State which may be

by acquiring foreign territory and adding it to that

of the State. Article 3(c) contemplates the diminish­

ing of the area of any State which may be by cession

to a foreign power. There is no restriction or limita­

tion placed on the words" increase " or "decrease "

in clause (b) and(c) of Art. 3 and they are comprehen­

sive enough to inclnde increase or decrease by acquisi­

tion of foreign territory or cession of a State territory.

See Babulal Parate's case, [1960] 1 S.C.R. 605. No

doctrinaire approach or preconceived notions should

be imported in the interpretation of Arts. 2 and 3 of

an organic instrument like the Constitution. Legislation

under Art. 368 of the Constitution is neither necessary

nor proper. Legislation under Art. 368 would put the

States to a disadvantage as under that Article it

would not be necessary, as it would be under·Art. 3, to

refer the bill to that State for expressing its views

thereon.

The exchange of the Cooch-Behar enclaves does not

involve cession of territory and executive action alone

is sufficient

to implement the agreement. An exchange

of territory for administrative considerations as a part

of a larger settlement does not amount to cession.

Oppenhiem,

8th Edn., p. 451, Art. 169, p. 548, Art. 216,

p.

547; Halsbury,

Vol. 7, Art. 604. Even if the transac­

tion involves cession of territory, legislation under

Art. 3 of the Constitution will be sufficient to imple­

ment the agreement.

The Union has the right to cede territory if and

when the occasion arises. S,uch a right vests in every

Sovereign State and can be implied even when not

specifically conferred by its Constitution. Willoughby,

Vol. I, p. 572.

S. M. Bose, Advocate-General, West Bengal, B. Sen,

K. 0. Mukherjee and P. K. Bose, for the State of West

Bengal. Under the Indian Independence Act the

whole of the district of J alpaiguri was provisionally

·given to West Bengal. If the Radcliffe Award fixed

the boundary line, then there can be no dispute and

no necessity for the agreement. But, if the Award

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...

3 S.C.R. SUPREME COURT REPOH,TS '259

·did dot fix. the line and left . it undetermined, then r960

under the Indian Independence Act, the whole of

In re:

Bernbari went to West Bengal. The Act contemplates Berubari Union

settlement of the boundary by an Award and not by & Exchange of

agreement of the Prime Ministers. If the Award did Enclaves

not settle the boundary, then the whole of Jalpaiguri

belonged to India. The Prime Ministers' agreement

in fact divides Berubari half and half without making

any attempt to clarify the Award. It was wrong to -

say that the agreement amounts merely to delinea-

tion of the boundary.· rt· involves cession of

Indian territory to Pakistan. The Constitution gives

power only

to acquire foreign territory and not to

cede Indian territory to foreign powers.

, First, it

would be necessary to take action under ·Art. 368

empowering

Parliament to make law for cession of

territory and then legislation under Art. 3 can be

resorted to. In Art. 3(a) the words

"any territory'~

are not wide enough to include foreign territory; they

apply what has already been acquired and has become.

part of the Union under Art. 1. Parliament has power

only to pass law in respect of territory over which it

has jurisdiction. Article 3 merely deals with the

internal arrangement of the territories of the States

and does not deal with acquisition of foreign territory

or cession of the Indian territory to foreign powers.

N. 0. Chatterjee with Janardan Sharma for Krishna

Kumar Chatterjee and Ramaprasanna Roy and with

U. M. Trivedi, D.R. Prem, Veda Vyasa, R.' Thiagara­

jan and Ganapat Rai, for (1) the President, Bharatiya

Jana Sangh, Kerala, (2) Secretary, Jana Sangh, Mandi,

(3tShri Tata Srirama Murthy, Akhila Bharatiya Jan­

.Sangh, Visakhapatam, (4) Chairman, Bharatiya Jan­

sangh, Mangalore, (5) Secretary, Bharatiya Jansangh,

Sitapur, (6) Shri N. Thamban Nambiar, Bharatiya

Jansangh, Thaliparambu and (7) President, Bharatiya

J ansangh, Pattambi (Cochin). The Prime Ministers'

agreement cannot be implemented at all. Indian

territory cannot be ceded at all. Berubari is an inte-.

gral part of the Union of India and it was and has all

along

been under the possession of

·West Bengal since

the partition of the country in 1947. The true nature

of the ~rime Ministers ' agreement is that it is not the

In re:

Berubari Union

& Exchange of

Enclaves

SUPREME COURT REPORTS [1960]

ascertainment of a boundary in accordance with -the·

Radcliffe Award, but it is a pure ca.se of cession of

territory to Pakistan. The case reported in The State

of South Australia v. State of Victoria, 12 C.L.R. 667,

has no bearing, as in that case there was no qne3tion

of giving of any territory to a foreign power. Similarly,

Penn v. Baltimore, 1 Ves. Sen. 444, was not concerned

with the cession of any territory. There are certain

implied prohibitions in our Constitution and it is not

a completely amendable Constitution. The preamble

to the Constitution does not permit the dismember­

ment of India and preserves the integrity of the terri­

tory of India. Article 4, s. 3, para. 2, of the United

States Constitution gives a specific power to cede

territory. It does not flow necessarily from the con­

cept of sovereignty that the Government must have

power to cede its territory. 33 L. Ed. 642; 1933 U. S.

258. The express mention of the power of acquisition

.in Arts. 1

and 2 excludes the power to cede. The

.maxim

"expressio uniu.~ exclusio alterius" is applic­

able to statutes also. Brooms Legal Maxims, 10th

Edn., p. 452; Craies, 5th Edn., p. 240; 1951 U. S. 914;

Willoughby, Vol. 1, p. 518. The Indian Parliament

is not sovereign and it is prohibited from changing or

dismembering or whittling down the territory of

India. [1951] S.C.R. 744, 968. The preamble is the

key to open the minds of the makers. 8 E.R. 1034;

A.I.R. 1956 S.C. 246; [1950] S.C.R. 1098. In the

transfer of the areas of Berubari to Pakistan, the

fundamental rights of thousands of persons are involv­

ed. The rights of franchise and citizenship cannot be

taken away by executive action.

0. B. Agai-wala and A. G. Ratnaparkhi, for the

Secretary, Jalpaiguri Revolutionary Socialist Party,

the Secretary, All India Forward Bloc, Calcutta and

Shri Nirmal Bose of Jalpaiguri. The agreement can­

not be implemented by executive action. The Govern­

ment is not dealing with its own property but with

the property of the States. Even legislation under

Art. 3 would not be sufficient. The right of citizen­

ship cannot be taken away except by legislation under

Art. 11. In the implementation of the agreement the

fundamental rights guaranteed by Part III of the

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3 S.C.R. SUPREME COURT REPORTS 261

Constitution are involved and the citizens of that part

of Beru bari which has to be given to Pakistan will be

deprived

of all such rights.

Citizens of India cannot

be deprived

of their fandamental rights by legislation

under Art.

3. The agreement cannot be implemented

even

by legislation under Art. 368 as there are limita-

'

tions on the power to amend imposed by the preamble.

Such an agreement can only be ill)plemented with the

consent of the people by referendum.

D. R. Prem (with the permission of the court).

Article 3 deals with

the formation of new

States and

alterations of areas, boundaries or names of existing

States as indicated in the marginal note: Article 3

makes

the same provisions in the present

C<;mstitution

ass. 290 did in the Government of India Act, 1935.

Both deal with internal arrangement and not with

foreign territory.

M.

0. Setalvad, in reply. The description of the

boundary line in the Radcliffe Award is not ·clear and

the provision in the agreement that the division would

be horizontal only means

that the division is to be by

means of a line running east to west dividing the

territory half and half. The preamble cannot control

the unambiguous language of the Articles of the

Con­

stitution. Willoughby, Vol. I, p. 62. Constitution of

the United States of America, 1952 Edn, p. 59. The

preamble is not a part of the Constitution. The

language of Art. 368 is perfectly clear and no limita­

tions can be placed upon it on account of the preamble.

The rights of citizenship and the fundamental rights

do

not affect the power

unde,r Art. 368. It is only by

legislation under Arts. 2 or 3(a) that foreign territory

can be acquired and can become part of India. There

is no reason

or warrant

to restrict the language or the

scope of Art. 3. Clause (a) of Art. 3 clearly deals

with foreign territory and there is no warrant for

considering clauses (b)

and (c) in any other way as not

relating to foreign territory. Every other provision

in Pa.rt l of the

Constitution envisages two kinds of

territory_:__Indian and foreign-and there is no reason

to envisage only one

kind of territory in els. (b), (c), (d) a.nd (e) of Art. 3. The Court should not construe the

34

In re:

Berubari Union,

&. Exchange of

Enclaves

In re:

Berubat'i Union

&.. Exchange of

Enclaves

262 SUPREME COURT REPORTS [1960]

provisions in such a manner as would make adjust­

ments of boundary difficult. It is of the essence of sov­

ereignty to cede and to acquire territory. Willoughby,

Vol. I, pp. 575 and 576, Willis; pp. 254 to 255. There

is no specific provision regarding cession of territory

in any Constitution. The power to cede territory in

the United States is included in its treat.y making

power and is not conferred by Article 4, section 3, part

2 of the United States Constitution as stated by Shri

N. C. Chatterji. Willoughby, Vol. I, p. 90. Parliament

has been empowered under Art. 11 to take away the

rights of citizenship. A law under Arts. 3 and 4 will

deal

with

"supplemental and incidental" provisions

and may contain provisions under Art. 11 for taking

away the rights of citizenship also. Cession of terri­

tory necessarily affects the nationality and rights of

the inhabitants of the ceded territory. Anson's Law

and Custom of the Constitution, 4th Edn. Vol. 2, Part

II, p. 141. Fundamental rights cannot exist when

there is transfer of allegiance consequent upon cession

of territory.

cur. adv. vult.

1960. March 14. The Opinion of the Court was

pronounced by

Gaj,ndrngadkar ]. GAJENDRAGADKAR, J.-In accordance with the

directives issued by the Prime Ministers of India and

Pakistan, on September 10, 1958, the Commonwealth

Secretary, Ministry of External Affairs, Government

of India and the Foreign Secretary, Ministry of

Foreign Affairs and Commonwealth, Government of

Pakistan, discussed 10 items of dispute between the

two countries and signed a joint note recording their

agreement in respect of the said disputes and submit­

ted it to their respective Prinie Ministers; and with a

view

to removing causes of tension and resolving

border disputes and problems relating to

Indo-Pakis­

tan Border Areas and establishing peaceful conditions

along those areas, the Prime Ministers, acting on

behalf of their respective Governments, entered into

an agreement settling some of the said disputes and

problems in the manner set out in the said joint note.

This agreement has been called the ludo-Pakistan

·-

-

-~

...

... ;

3 S.C.R. SUPREME COURT REPORTS 263

Agreement

and will be referred to hereafter as the

Agreement.

In the present Reference we are concerned with two

items

of the Agreement; item 3 in paragraph 2 of the

Agreement reads as follows :-

" (3) Berubari Union No. 12. .

In re:

Berubari Union

& Exchange of

Enclaves

This will be so divided as to give half the area to Gajendragadkar J,

Pakistan, the other half adjacent to India being

retained

by India. The Division of Berubari Union

No. 12 will be horizontal,

starting from the north-

east corner

of Debiganj Thana. The division should

be made in such a

manner that the Cooch-Behar

Enclaves between

Pachagar Thana of East Pakistan

and Berubari Union No. 12 of Jalpaiguri Thana of

West Bengal will remain connected as at present

with

Indian territory and will remain with India.

The Cooch-Behar Enclaves lower down between

Boda

Thana of East Pakistan and Berubari Union

No. 12 will be exchanged along with

the general

exchange

of enclaves and

will go to Pakistan."

Similarly item 10 of the Agreement is as follows:-

" (lO) Exchange of Old Qooch-Behar Enclaves in

Pakistan and Pakistan Enclaves in India without

claim

to compensation for extra area going to Pakis-

tan, is agreed

to." ·

It appears that subsequently a doubt has arisen

whether

the implementation of the Agreement relating

to Berubari Union requires

any legislative action

either

by way of a suitable law of Parliament relatable

to Art. 3 of the Constitution or by way of a suitable

amendment of the Constitution in accordance with

the provisions of Art. 368 of the Constitution or both;

and that a similar doubt has arisen about the

imple­

mentation of the Agreement relating to the exchange

of Enclaves; and it further appears that there is a

likelihood

of the constitutional validity of any action

taken for the implementation of the Agreement

relat­

ing to Berubari Union as well as the Agreement

relating to

the exchange of Enclaves being questioned

in courts of law involving avoidable and protracted

litigation ;

that is why the President thought that

questions of law which have arisen are of such nature

and of such importance that it is expedient that the

1'960

In 'le:

Berubari Union

& Exchange of

Enclaves

Gojendragadkar ] .

264 SUPREME COURT REPORTS (1960]

opm10n of the Supreme Court of India should be

obtained

thereon; and so, in exercise of the powers

conferred

upon him by cl. (1) of Art.

143 of the Consti­

tution, he has referred tl)e following three questions to

this Court for consideration and report thereon :-

( l) Is any legislative action necessary for the

implementation of the Agreement relating to Beru­

bari Union?

(2) If so, is a Jaw of Parliament relatable to arti­

cle 3 of the Constitution sufficient for the purpose or

is an amendment of the Constitution in accordance

with article 368 of the Constitution necessary, in

addition or in the alternative?

(3) Is a law of Parliament relatable· to article 3 of

the Constitution sufficient for implementation of

the agreement relating to Exchange of Enclaves or

is an amendment of the Constitution in accordance

with article 368 of the Constitution necessary for

the purpose, in addition or in the alternative ?

Before dealing

with the questions thus referred to

this

Court it is necessary to set out briefly the histori­

cal, political

and constitutional background of the

Agreement.

On February 20, 194 7, the British

Government announced its intention to transfer power

in British India tb Indian hands by June 1948. On

June 3, 1947, the said Government issued a statement

as to the method by which the transfer of power

would be effected. On July 18, 1947, the British P:1rlia­

ment passed the Indian Independence Act, 1947. This

Act was to come into force from August 15, 1947, which

was

the appointed

day:. As from the appointed day

two independent Dominions, it was declared, would be

set up in India to be known respectively as India and

Pakistan. Section 2 of the Act provided that subject

to the provisions of sub-ss. (3) and (4) of s. 2 the terri­

tories of India shall be the territories under the

sovereignty of His Majesty which immediately before

the appointed day were included in British India

except the territories which under sub-s. (2) of s. 2

were to be the territories of Pakistan. Section 3,

sub-s.

(1), provided, inter alia, that as from the appoint­

ed day the Province of Bengal

as constituted under

the Government of India Act, 1935, shall cea2e to exist

-

-

-

-

-

3 S.C.R. SUPREME COURT REPQ~TS 265

and there shall be constituted in lieu thereof two new z9

6

o ·

Provinces to be known respectively as East Bengal In re.:

and west Bengal. Sub-section (3) of s. 3 provided, B<rubari Union

inter alia, that the boundaries of the new Provinces & Exchange of

aforesaid shall be such as may be determined whether Enclaves

before or after the appointed day by the award of a

boundary commission appointed or to be appointed by Gajenri,ragadkar ]"

the Governor-General in that behalf, but until boun-

daries are so determined, (a)

the Bengal District

specified in

the First

Schedule of this Act ............. ..

......... shall be treated as the territories which are to

be comprised as

the new Province of East Bengal; (b)

the

remaii;ider of the .territories comprised at the date

of the passing of this Act in the Province of Bengal

shall be treated as

the territories which are to be

com prised in

the new Province of West Bengal.

Section 3, sub-s. (4), provided that the expression

"award" means, in relation to a boundary commission,

the decision of the Chairman of the commission con~

tained in his report to the Governor-General at the

conclusion of the commission's proceedings. The

Province of West Bengal is now known as the State

of West Bengal and ·is a part of India, whereas the

Province of East Bengal has becomwa part of Pakis­

tan and is now known as East Pakistan.

Berubari Union No. 12, with which we are concern­

ed, has an area of 8•75 sq. miles and a population of

ten to twelve thousand residents. It is situated in

the police station J alpaiguri in the District of J alpai­

guri, which was at the relevant time a part of Raja­

shahi Division. It has, however, not been specified

in the First Schedule of the Independence Act, and if

the matter had to be considered in the light of the

said Schedule, it would be a part of West Bengal. But,

as we shall presently point out, the First Schedule to

the Independence Act did not really come into opera­

tion at all.

On June 30, 1947, the Governor-General made an

announcement that it had been decided that the

Province of Bengal and Punjab shall be partitioned.

Accordingly, a

boundary commission was appointed,

inter alia, for Bengal consisting of four judges of

High

Courts and a Chairman to be appointed later.

266 SUPREME COURT REPORTS (1960)

· '9

60 Sir Cyril Radcliffe was subsequently appointed as

Chairman. So far as Bengal was concerned the mate­

In re:

B"ubari Union rial terms of reference provided that the boundary

&-Exchange of commission should demarcate the boundaries of the

Enclaves two parts of Bengal on the basis of ascertaining the

. --contiguous areas of muslims and non-muslims; in

Ga1endragadkar f. doing so it had also to take into account other factors.

The commission then held its enquiry and made an

award on August 12, 1947, which is known as the

Radcliffe Award (hereinafter called the award). It

would be noticed that this award was made three days

before the appointed day under the Independence Act.

The report shows that the Chairman framed seven

basic questions

on the decision of which the demarca­

tion of a boundary line between East-West Bengal

depended. Question No. 6 is relevant for

out purpose;

it was framed in this way :

" C. 6. Which State's claim ought to prevail in

respect of the districts of Darjeeling and J alpaiguri

in which the muslim population amounted to 2·42%

of the whole in the case of Darjeeling and 23·08%

of the whole in the case of Jalpaiguri but which

constituted an area not in any natural sense con­

tiguous

to another non-muslim area of

Bengal?"

It appears that the members of the commission were

unable to arrive at an agreed view on any of the

major issues, and so the Chairman had no alternative

but to proceed to give his own decision. Accordingly

the Chairman gave his decision on the relevant isslles

in these words :-

" The demarcation of the boundary line is des­

cribed

in detail in the schedule which forms

annexure A to the award and in the map attached t,hereto, annexure B. The map is annexed for the

purposes of illustration, and if there should be any

divergence between the boundary as described in

annexure A and as delineated on the map in

annexure B the description in annexure A is to

prevail."

Paragraph 1 in annexure A is material. It provided

that "a line shall be drawn along the boundary be­

tween

the

Thana; of Phansidewa in the District of

Darjeeling and the Thana Tetulia in the District of

. ..

-

....__,.;, 3 S.C.R. SUPREME COURT REPORTS 267

•·

-

Jalpaiguri from the point where that boundary meets I9

60

the Province of Bihar and then along the boundary In,.:

between the Thanas of Tetulia and Rajganj, the Betubari. union

Thanas of Pachagar and Rajganj and the Thanas of a;. Exchange of

Pachagar and Jal paiguri, and shall then continue Enclaves

along with northern corner of Thana of Debiganj to -

1

the boundary of the State of Cooch-Behar. The Gajendragadkar .

district of Darjeeling and so much of the district of

Jalpaiguri as lies north of this line shall belong to

West Bengal, but th~ 'fhana of Patgram and any

other portion of Jalpaiguri District which lies to the

east or south shall belong to East Bengal." Since the

award came into operation three days before the day

appointed under the Independence Act the territorial

extent of the Province of West Bengal never came to

be determined under Schedule I to the said Independ­

ence Act but was determined by the award. There

is no dispute

that since the date of the award

Beru­

bari Union No. 12 has in fact formed part of the State

of West Bengal and has been governed as such .

. Meanwhile the Constituent Assembly which began

its deliberations on-December 9, 1946, reassembled as

the Sovereign Constituent Assembly for India after

midnight of August 14, 1947, and it began its historic

task of drafting the Constitution for India. A draft­

ing committee was appointed by the Constituent

Assembly

and the draft prepared by it

was presented

to the Assembly on November 4, 1948. After due

. deliberations the draft passed through three readings

and as finalised it was signed by the President of the

Assembly and declared as passed on November 26,

1949. On that date it became the ionstitution of

India.; but, as provided by Art. 394, only specified

articles came into force as from thav date and the

remaining provisions as from January 26, 1950, which

day is referred to in the Constitution as the commence­

ment

of the Constitution. Article 1 of the

Constitu­

tion provides, inter alia, that India, that is Bharat,

shall be a Union of States and that the States and the

territories thereof shall be the States and their terri­

tories specified· in Parts A, B and C of the First

Schedule. West Bengal was shown as one of the

States in Part A ; and it was provided that the

In t'e:

Berubari Union

0-Exchange of

Enclaves

Gajendragadkar].

268 SUPREME COUR'f REPORTS (1960)

territory of the State of West Bengal shall comprise

the territory which immediately before the commence­

ment of the Constitution was comprised m the

Province of West Bengal. In the light of the award

Berubari Union No. 12 was treated as a part of the

Province of West Bengal and as such has been treated

and governed on that basis. .

Subsequently, certain boundary disputes arose be­

tween

India and Pakistan and it was

agrPed between

them at the Inter-Dominion Conference held in New

Delhi

on December 14, 1948, that a tribunal should

be

set up without delay and in any case not later

than ,January 31, 1949, for the adjudication and final

decision

of the said disputes. This tribunal is known

as ludo-Pakistan Boundaries Disputes Tribunal, and

it was presided over. by the Hon'ble Lord Justice

Algot Bagge. This tribunal had to consider two cate­

gories

of disputes in regard to East-West Bengal but

on this occasion no issue was raised about the Beru­

bari

Union. In fact no reference was madp, to the

District of J alpaiguri at all in the proceedings before

the tribunal. The Bagge Award was made on Janu­

ary 26, 1950.

It was two years later that the question of Berubari

Union was raised by the Government of Pakistan for

the first time in 1952. During the whole of this period

the Berubari Union continued to be in the possession

of the Indian Union and was governed as a part of

West Bengal. In 1952 Pakistan alleged that under.

the award Berubari Union should really have formed

part of East Bengal and it had been wrongly treated

as a part of West Bengal. Apparently cnrrespon­

ence

took place between the Prime Ministers of India

and Pakistan on this subject from time to time and

the dispute remained alive until 1958. It was under

these circumstances that the present Agreement was

reached between the two Prime Ministers on

Septem­

ber 10, 1958. That is the background of the present

dispute in regard to Berubari Union No. 12.

At this stage we may also refer briefly to the back­

ground of events which ultimately led to the proposed

exchange

of

Cooch-Behar Enclaves between India and

Pakistan. Section 290 of the Government of India

-

,..._

,

3 S.O.R. SUPREME COURT REPORTS 269

Act, 1935, had provij].ed that His Majesty may by

In re:

Btrubari Uni~n

&.-Exchange of

Enclaves

Order-in-Council increase or diminish the area of any

Province or alter the boundary

of any

:Province pro­

vided the procedure prescribed was observed. It is

common ground that the Government of India was

authorised by the Extra-Provincial Jurisdiction Act

of 1947 to e'xercise necessary powers in that behalf. Gaj<ndragadkar J.

Subsequently on J·anuary 12, 1949, the Government of

India Act, 1935, w11s amended and s. 290A and

s. 290B were added to it. Section 290-A reads

')thus:-

" 290-A. Administration of certain Acceding

States as a Chief Qommissioner's Province or as

part of a Governor's or Chief Commissioner's Pro-

vince:- ·

(1) "Where full and exclusive authority, jurisdic­

tion and powers for and in relation to governance

of any Indian State or any group of such States are

for the time being exercisable by the Dominion

Government, the Governor-General may by order

direct-

( a) that the

State or the group of States shall be

administered in all respects as if the State or the

. g'.oup of States were a Chief Commissioner's Pro­

vmce; or

(b) that the State or the group of States shall be

administered in all respects as if the State or the

group

of

States formed part of a Governor's or a

Chief Commissioner's Province specified in the

Order;".

Section 290-B(l) provides that the Governor-Gene·

ral may by order direct for the administration of

areas included within the Governor's Province or a

Chief Commissioner's Province by an Acceding State,

and it prescribes that the acceding area shall be

administered in all respects by a neighbouring Acced­

ing State as if such area formed part of such State,

and thereupon the provisions of the Government of

India Act shall apply accordingly.

After these two sections were· thus added several

strp~ wPrP taken by the Government of India for the

mergPr of lndian States with the U uion of India.

35 •

In re:

Betubari Union

& Exchange of

Enclaves

Gf1jendragadkar].

270 SUPREME COURT REPORTS [1960]

With that object the States Merger (Governors' Pro­

vinces) Order, 1949, was passed on July 27, 1949. The

effect of this order was that the States which had

merged with the Provinces were to be administered in

all respects as if they formed part of the absorbing

Provinces. This order was amended from time to

time. On August 28, 1949, an agreement of merger

was entered into between the Government of India

and the Ruler of the State of Cooch-Behar and in pur­

suance of this agreement the Government of India

took over the admini.ration, of Cooch-Behar on

September 12, 1949; Cooch-Behar thus became a part

of the territory of India and was accordingly included

in the list of Part C States as Serial No. 4 in the First

Schedule to the Constitution. .Thereafter, on 'Decem­

ber 31, 1949, the States Merger (West Bengal) Order,

1949, was passed. It provided that whereas foll and

exclusive authority, jurisdiction and power for and in

relation. to the governance of the Indian State of

· Cooch-Behar were exercisable by the Dominion

Government, it was expedient to provide by the order

made under s. 290A for the administration of the said

State in all respects as if it formed part of the Pro­

vince of West Bengal. In consequence, on January 1,

1950, the erstwhile State of Cooch-Behar was merged

with West Bengal and began to be governed as if it

was part of West Bengal. As a result of this merger

Cooch-Behar was taken out of the list of Part C States

in the First Schedule to the Constitution and added to

West Bengal in the same Schedule, and the territorial

description of West Bengal as prescribed in the First

Schedule was amended by the addition of the clause

which referred

to the territories which were being

administered as

if they formed part of that Province.

In other words, after the merger of

Cooch-Behar the

territories of West Bengal included those which imme­

diately before the commencement of the Constitution

were comprised in the Province of West Bengal as

well as those which were being administered as if they

formed part of that Province. Subsequently a further

addition has been made to the territories of West

Benga,l by the inclusion of ~handernagore but it is not

necessary to refer to the said addition at this stage.

-

---,

3 S.C.R. SUPREME COURT REPORTS 271

It appears that certain areas which formed part of

In re:

the territories of the former Indian State of Oooch­

Behar and which had subsequently become a part of

Berubari Union

c;he territories of India and then .of West Bengal o;. Exchange of

became after the partition enclaves in Pakistan.

Similarly certain Pakistan enclaves were found in

Enclaves

India. The problem arising from the existence of Gajendragadkar 1 •

these enclaves in Pakistan and in India along with

other border problems was being considered by the

Governments of India and of Pakistan for a long time.

The existence of these enclaves of India in Pakistan

and of Pakistan in India worked as a constant source

of tension and conflict between the two countries.

With a view

to removing these causes of tension and

conflict the two Prime Ministers decided

to· solve the

problem of the said enclaves and establish peaceful

conditions along

the said areas. It is with this object

that the exchange of enclaves was agreed upon by

them and the said adjustment is described in item

10

of paragraph 3 of the Agreement. That in brief is the

historical and constitutional background of the

exchange of enclaves.

On behalf of the Union of India the learned Attor­

ney-General

has contended that no legislative action

is necessary for

the

i:rpplementation of the Agreement

relating to Berubari Union as well as'the exchange of

enclaves. In regard to the Berubari Union he argues .

that what the Agreemeµt has purported to do is to

ascertain

or to delineate the exact boundary about

which a dispute existed between the two

countr-ies by

reason of different interpretations put by them on the

relevant description contained in the award; the· said

Agreem~mt is merely the recognition or ascertainment

of the boundary which had already been fixed and in

no sense is it a substitution of a new boundary or the

alteration of the boundary implying any alteration of

the territorial limits of India. He emphasises that

the ascertainment or the settlement of the boundary

in the light of the award by which both Governments

were bound, is

not an alienation or cession of the

territory of India, and according to him, if, as a result

of the ascertainment of the true boundary in the light

of the award, possession of some land has had to be

ln re:

Beri,bari Union

& Exchange of

Enclaves

272 SUPREME COURT REPORTS [1960]

yielded to Pakistan it does not amount to cession of

territory; it is merely a mode of settling the boun­

dary. The award had already settled the boundary,;

but since a dispqte arose between the two Govern-'

ments in respect of the location of the said boundary

the dispute was resolved in the light of the directions

Gajendmgadkar J. given by the award and in the light of the maps

attached to it. · Where a dispute about a boundary

thus arises between two States and it is resolved in

the light of an award binding on them the agreement

which embodies the settlement of such a dispute must

be treated as no more than the ascertainment of the

real boundary between them and it cannot be treated

as cession or alienation of territory by one in favour

of the other. According to this argument there was

neither real alteration of the boundary nor real dimi­

nution of territory, and there would be no occasion to

make any alteration or change in the description of

the territories of West Bengal in the First Schedule to

the Constitution.

It is also faintly suggested by the learned Attorney­

General that the exchange of Cooch-Behar Enclaves

is a part of the general and broader agreement about

the Berubari Union and in fact it is incidental to it.

Therefore, viewed in

the said context, even this

exchange cannot be said to involve cession of any

territory. On this assumption the learned Attorney-General

has further contended that the settlement and recog­

nition of the true boundary can be effected by

. executive action alone, and so the Agreement which

has been reached between the two Prime Ministers

can be implemented without any legislative action.

In support of this argument the learned Attorney­

General has relied upon certain provisions of the

Constitution and we may at this stage briefly refer to

them.

Entry 14 in List I of the Seventh Schedule reads

thus: "Entering into treaties and agreements with

foreign countries and implementing of treaties, agree­

ments and conventions with foreign countries ".

Article 253 occurs in Part XI which deals with rela­

tions between

the

Union and tlw States. It provides

-

-

-

3 S.C.R. SUPREME COURT REPORTS 273

that "notwithstanding anything in the foregoing pro-

visions

of the said

Chapter Parliament has power to

make

any law for the whole or any part of the territory

of India for implementing any treaty, agreement or

convention with any other country or countries or

any decision made at any international conference,

In

re:

Berubafi Union

& Exchange of

Enclaves

association or other body ". This power is conferred Gajendragadkar J.

on Parliament by reference to Entry 14. Besides there •

are three other articles in the same part which are

relevant. Article

24,5(1) empowers Parliament to make

laws for

the whole or any part of the territory of

India; Article 245(2) provides that no law made by

Parliament shall be deemed to be invalid on the

ground that it would have extra-territorial operation;

Article 246 prescribes the subject-matter oflaws which

Parliament can make; and Art. 248 provides for the

residuary powers of legislation in Parliament. Article

. 248 lays down that Parliament has power to make

any law with respect to any matter not enumerated in

the Concurrent List or State List. There is thus no

doubt about the legislative competence of Parliament

to legislate about any treaty, agreement or convention

with

any other country and to give effect to such

agreement

or convention.

It is, however, urged that in regard to the making

of treaties and implementing them the executive

powers

of the

Central Government are co-extensive

and co-incidental with the powers of Parliament itself.

This argument is sought

to be based on the provisions

of certain Articles to which reference may be made.

Article 53(1) provides

that the executive power of the

Union shall be vested in the President and shall be

exercised by him either directly

or through officers

subordinate to him in accordance with

the

Constitu­

tion. Article 73 on which strong reliance is placed

prescribes

the extent of the executive power of the Union. Article 73(1) says "that subject to the provi­

sions of this Constitution the executive power of the

Union shall extend (a) to the matters with respect to

which Parliament ,has power to make faws; and (b)

to

the exercise of such rights, authority and

jurisdic­

tion as are exercisable by the Government of India

by virtue of any treaty or agreement provided that

274 SUPREME COURT REPORTS [1960]

'9

60

the executive power referred to in sub-cl. (a) shall not,

In": save as expressly provided in this Constitution or in

Berubari union any law made by Parliament, extend in any State to

& Exchange of matters with respect to which the Legislature of the

Enclaves State has also the power to make laws"; and Article

- 74 provides that there shall be a Council of Ministers

Gajendragadkar ]. with the Prime Minister at the head to aid and advise

the President in the· exercise of his functions; and

Article 74(2) lays down that the question whether any,

and if so what, advice was tendered by the Ministers

to

the President shall not be inquired into in any court.

According to

the learned Attorney-General the powers

conferred on

the

Union executive under Art. 73(l)(a)

have reference to the powers exercisable by reference

to Entry 14, List I, in the Seventh Schedule, whereas

the powers conferred by Art. 73( 1 )(b) are analogous

to the powers conferred on the Parliament by Art.

253

of the Constitution. Indeed the learned Attorney-.

General contended

that this position is concluded by

a decision of this

Court in. Rai Sahib Ram J awaya

Kapur & Ors. v. The State of Punjab (')-Dealing

with the question about the limits within which the

executive Government can function under the Indian

Constitution Chief Justice Mukherjea, who delivered

the unanimous decision of the Court, has observed

that " the said limits can be ascertained without

much difficulty by reference to the form of executive

which our Constitution has set

up'', and has added, " that the executive function comprised both the

determination of the policy as well as carrying it

into execution. This evidently includes the initia­

tion of legislation, maintenance of order, the promo­

tion of social and economic welfare, the direction of

foreign policy, in fact the carrying on or supervision

of the general administration of the State"-It is on

this observation that the learned Attorney-General

has founded his argument.

Let us then first consider what the Agreement in

fact has done. Has it really purported to determine

the boundaries in the light of the award, or has it

sought to settle the dispute amicably on an ad hoc

basis by dividing the disputed territory half and half?

Reading the relevant portion of the Agreement it is

\1) L1955J • s.c.R. 025.

-

3 S.C.R. SUPREME COURT REPORTS

difficult to escape the conclusion that the parties to :r960

it came to the conclusion that the most expedient

l l In re:

and reasonab e way to reso ve the dispute would Berubari Unian

-be to divide t_he area in question half and half. There &-Exchange of

is no trace in the Agreement of any attempt to inter- Enclaves

pret the a ward or to determine what the a ward really · -­

meant. The Agreement begins with the statement ofGajendragadkar J.

the decision that the area in dispute will be so divided -

-as to give

half the area to Pakistan, the other half

adjacent to India being retained by India. In other

words,

the Agreement says that, though the whole of

the area of Berubari Union No. 12 was within India,

India was prepared to give half of it to Pakistan in a

spirit

of give and take in order to ensure friendly

rela­

tions between the parties and remove causes of tension

between them.

Having come to this decision the

Agreement describes how the decision has to be carried

out.

It provides that the divisfon of the area will be

horizontal

starting from the northeast corner of

Debi­

ganj Thana. It also provides that the division should

be made

in such manner that the Cooch-Behar Enclaves

between

Pachagar Thana of East Pakistan and

Beru­

bari Union No.12 ofJalpaiguri Thana of West Bengal

will remain with India. This again is a provision for

carrying

out the decision of dividing the area half and

half. Yet, another provision is made as to the

divi­

sion of Cooch-Behar Enclaves lower down between

Boda

Thana of East Pakistan and Berubari Union

No.

12 and it is provided that they shall be exchanged

along with

the general exchange of enclaves and will

go to Pakistan.

In our opinion, every

-one of the

clauses in this Agreement clearly and unambiguously

shows

that, apart from, and independently of, the

award, it was agreed to divide the area half and half

and the method of effecting this division was

specific­

ally indicated by making four material provisions in

that behalf. If that be so, it is difficult to accept the

argument that this part of the Agreement amounts to

no more than ascertainment and delineation of the

boundaries in the light of the award.

It is no doubt suggested by the learned Attorney.

General

that an examination of the description in

x960

ln Ye:

Berubari Union

t$.. Exchange of

Enclaves

Gajendragadkar

].

276

SUPREME COUR,T REPORTS [1960]

annexure A in the Schedule to the award in relation

to police station boundaries revealed a lacuna in it,

inasmuch as there was no mention in it of the boun­

dary between police station Boda and police st•,tion

Jalpaiguri; and the argument is that the result of this

description was that the two points were specified, one

on the western boundary of the Berubari Union (the

extremity of the boundary between the Thanas of

Pachagar and J alpaiguri) and the other on its eastern

,boundary (the northern corner of the Thana of Debi­

ganj where it meets Cooch-Behar State) without giving

an indication as to how these boundaries were to be

connected,

It is also pointed out that the line as

drawn in the map, annexure B, in the Schedule to the

award would, if followed independently of the

descrip­

tion given in Schedule A in the annexure to the said

award, mean that almost the whole of the Berubari

Union would have fallen in the territory of East Bengal

and that was the claim made by the Government of

Pakistan, and it is that claim which was settled in the

light of the award.

In this connection it is relevant to remember the

direction specifically given by the Chairman in his

award that the map is annexed for the purpose of

illustration and that in case of any divergence betwflen

the map, annexure B, and the boundary as described

in annexure A, the description in annexure A has to

prevail, and so no claim could reasonably or validly be

made for the inclusion of almost the whole of Berubari

Union in East Bengal on the strength of the line

drawn in the map. Besides, the lacuna to which the

learned Attorney-General refers could have been

cured

by taking into account the general method

adopted by the award in fixing the boundaries.

Para­

graph 3 in annexure A shows that the line which was

fixed

by the award generally proceeded along the

boundaries between the

Tha.nas, and this general out.

line of the award would have assisted the decision

of the dispute if it was intended to resolve the dispute

in the light of the award. The line which was direct­

ed to be drawn in paragraph I of annexure A has" to

continue" along the northern corner of Thana Debi.

ganj to the boundary of the State of Cooch-Behar, and

•

-

-

...

3 S.C.R. SUPREME COURT REPORTS 277

this in the context may suggest that it had to con­

tinue by reference to the boundaries of the respective

Thanas.

It is principally because of these

considera­

tions that the territory in questio:i was in the posses­

sion of India for some years after the date of the

award and no dispute was raised until 1952.

We have referred to these facts in order

to

empha­

size that the agreement does not appear to have been

reached

after taking into account these facts and is

not based on any conclusions based on the interpreta

.

tion of the award and its effect. In fact the second

clause

of the Agreement

which directs that the division

of Berubari Union No. 12 will be horizontal starting

from the north-east corner of Debiganj Thana is not

very happily worded. The use of the ·word "hori•

zontal " appears to be slightly inappropriate; but,

apart from it, the direction as to this horizontal

method

of division as well as the other directions

contained

in the Agree1nent flow from the conclusion

with which

the Agreement begins that it had been

decided

that India should give half the area to

Pakis­

tan. We have carefully considered all the clauses in

the Agreement and we are satisfied that it does not

purport to be, and has not been, reached as a result

of any interpretation of the award and its terms; it

has been reached independently of the award and for

reasons and considerations which appeared

to the

parties to be wise and expedient. Therefore, we

can­

not accede to the argument urged by the learned

Attorney-General

that it does no more than ascertain

and determine the boundaries in the light of the

award.

It is an Agreement by which a part of the

territory of India has been ceded to Pakistan and the

question referred to us in respect of this.Agreement

must, therefore, be considered on

the basis that it

involves cession or alienation

of a part of India's

territory.

What is true about the Agreement in respect of

Berubari Union No. 12 is still more· emphatically true

about the exchange of Cooch-Behar Enclaves. Indeed

the learned Attorney-General's argument that no

legislation ii:! necessary to give effect to the Agreement

in respect of this exchange was based on the assump-

36 .

lnre:

Berubari Union

~ Exchange of

Enclaves

Gajendragadkar

].

278 SUPREME COUR'T REPORTS [1960]

'9

60

tion that this exchange is a part of a larger and

In re, broader settlement and so it partakes of its character.

Berubari Union Since we have held that the Agreement in respect of

& Exchange of Berubari Union No. 12 itself involves the cession of

Enclaves the territory of India a fortiori the Agreement in res-

. dk

1

pect of exchange of Cooch-Behar Enclaves does involve

Ga;endraga ar · h · f I d · t · Th · h th

t e cess10n o n ian erntory. at 18 w y e

question

about this exchange must also be considered

on the footing that a part of

th~ territory of India

has been ceded to Pakistan; besides it is clear that

unlike questions 1 and 2 the third question which has

reference to this exchange postulates the necessity of

legislation.

In this connection we may also deal with another

argument urged by the learned Attorney-General. He

contended that the implementation of the Agreement

in respect of Berubari Union would not necessitate

any change in the First Schedule to the Constitution

because, according

to him, Berubari

Union was never

legally included in the territorial description of West

Bengal contained in the said Schedule. We are not

impressed by this argument either. As we have already

indicated, since the award was announced Berubari

Union has remained in possession of India and has

been always treated as a part of West Bengal and

governed as such. In view of this factual position

there should be no difficulty in holding that it falls

within the territories which immediately before the

commencement of the Constitution were comprised

in the Province of West Bengal. Therefore, as a result

of the implementation of this Agreement the bounda­

ries of West Bengal would be altered and the content

of Entry 13 in the First Schedule to the Constitution

would be affected.

Before we

part with this topic we ought to refer to

the decision of the Australian High

Court in The State

of South Australia v: The State of Victoria (

1

)

on which

reliance

has been placed by the learned Attorney­

General.

In that case the boundary between the

8tate

of South Australia and the State of New South Wales

was

by Act

4 & 5 Will. IV, c. 95 and the Letters Pittent

issued under that Act defined to be the 14lst meridian

(r) (19I1) 12 C.L.R. 667,

•

-

279

of East Longitude. In 1847, by the authority of the r96o

,Governors of New South Wales and South Australia

In re:

and with the knowledge and approval of the Secretary Berubari Union

of State a line was located and marked on the ground & Exchange of

as being the 14lst meridian, but it was discovered in Enclaves

1869 that the said line was in fact about two miles to

the westward of tbiat meridian. 'l'he line. marked in Gajendragadkar J.

1847 had, however, been proclaimed by the respective

Governors as

the boundary and was the de facto

-

boundary thenceforward

.. In dealing with the dispute

which

had arisen in respect of the true boundary

between

the two

States Griffith, C.J., referred to the

fixation of the boundary in 184 7 and observed that

"the real transaction is the ascertainment of a fact by

persons competent

to ascertain it, and a finding of

fact so

made, and accepted by both, is in the nature of

an a ward or judgment in rem binding upon them and

all persons claiming under them" (p. 701). The said

dispute was subsequently

taken to the

Privy Council

and it was held by the Privy Council that "on the

true construction of the Letters Patent it was contem-

plated

that the boundary line of the 14lst meridian of

East Longitude should be ascertained and represented

on the surface of the earth so as to form a boundary

line dividing the two colonies, and that it therefore

implicitly gave

to the executive of the two colonies

power

to do such acts as were necessary for perma-

nently fixing such

boundaries" (1). The Privy Council

also observed

that

"the material facts showed that

the two Governments made with all care a sincere

effort

to represent as closely as was possible the theo-

retieal boundary assigned by the Letters

Patent by a

practical line

of demarcation on the earth's surface.

There is no trace of any intention to depart from the

boundary assigned, but only to reproduce it, and

as

in its nature it was to have the solemn status of a

boundary of jurisdiction their Lordships have no doubt

that it was intended by the two .executives to be fixed

finally

as the statutable boundary and that in point

of law it was so

fixed". It would thus be clear that

the settlement of the boundaries which was held not

to

amount to an alienation in that case had been

. (t) [1914] A.C. 283, 309.

280 SUPREM:Jjj COUR'l' REPORTS [1960]

r96o made wholly by reference to, and in the light of, the

provision of the parliamentary statute to which refer­

Ber~:,:·;,,fo,, ence has already been made. What was done in

,s. Exchange of 1847 by the parties who had authority to deal with

Enclaves the matter was to locate and mark a line on the

- ground which was held to be the 14lst meridian

Gajendragadkar J. though it is true that in 1869 it was discovered that

the line so 'fixed was about two miles to the westward

of the meridian. This was not a case where contract­

ing parties independently determined the line with a

view

to settle the dispute between the two respective

States.

What they purported to do was to determine

the line in accordance with the provisions of the

parliamentary statute. In the present case, as we

have already pointed out, the position of the Agree­

ment is essentially different ; it does not purport to

be based on the award and has been reached apart

from, and independently of, it. Therefore, we do not

think that the learned Attorney-General can derive

any assistance from the decision in the case of The

State of South Australia

v. The State of

Victoria (

1

)

in

support of his construction of the Agreement.

In view of our conclusion that the agreement

amounts to cession or alienation of a part of Indian

territory and is not a mere

r.scertainment or determi­

nation of the boundary in the light of, and by reference

to,

the award, it is not necessary to consider the other

contention raised by the learned Attorney-General

that it was within the competence of the

Union execu­

tive to enter into such an Agreement, and that the

Agreement can be implemented without any legisla­

tion.

It has been fairly conceded by him that this

argument proceeds on the assumption that the Agree­

ment is in substance and fact no more than the

ascertainment or the determination of the disputed

boundary already fixed by the award. We need not,

therefore, consider the merits of the argument about

the character and extent of the executive functions

and powers nor need we examine the question whether

the observations made by Mukherjea,

C.J., in the case

of Ra.i Sahib Ram J awaya Kapur (

2

)

in fact lend support

to the said argument, and if they do, whether the

question should not be reconsidered.

(I) [I9II]

I2 C.L.R. 667. (2) [1955] 'SC.R. 225.

--

.. .

3 S.C.R. SUPREME COURT REPORTS 281

At this stage it is necessary to consider the merits I9

60

of the rival contention raised by Mr. Chatterjee before In re:

us. He urges that even Parliament has no power to Berubari union

cede any part of the territory of India in favour of a & Exchange of

foreign State either by ordinary legislation or even by Enclaves

the amendment of the Constitution ; and so, according -

to him, the only opinion we can give on the Refer-Gajendragadkar J •

ence is that the Agreement is void and cannot

be made effective even by any legislative process.

This extreme contention is based on two grounds.

It is suggested that the preamble to the Constitution

clearly postulates

that like the democratic, republic-

an form of government the entire territory

of India

is beyond the reach of Parliament and cannot be

....

affected either by ordinary legislation or even by

constitutional amendment. The makers of the Con­

stitution were painfully conscious of the tragic parti-

tion of the country into two. parts, and so when

they framed the Constitution they were determined to

keep

the entire territory of India as inviolable and

sacred. The very first sentence in the preamble which

declares

.that

"We, the people of India, having

solemnly resolved to constitute India into a sovereign

democratic Republic", says Mr. Chatterjee, irrevoc­

ably postulates that India geographically and terri­

torially must always continue to be democratic and

republican. The other ground on which this conten­

tion is raised is founded on Art. 1(3}(c) of the Consti­

tution which contemplates that "the territory of

India shall comprise such other territories as may be

acquired'', and it is argued that whereas the Consti-

,., tution has expressly given to the country the power

to acquire other territories

it has made no provision

for ceding

any part of its territory; and in such a

case

the rule of construction, viz., expressio unius est

exclusio alterius

must apply. In our opinion, there is

no substance

in these contentions.

--... There is no doubt that the declaration made by the

"""' people of India in exercise of their sovereign will in

the preamble to the Constitution is, in the words of

Story, " a key to ?pen the mind of the makers"

which may show the general purposes for which they

made the several provisions in the Constitution; but

282 SUPREME COURT REPORTS [1960)

r96o nevertheless the preamble is not a part of the Consti-

In re: tution, and, as Willoughby has observed about the

Berubari Union preamble to the American Constitution, " it has never

& Exchange of been regarded as the source of any substantive power

Enclaves conferred on the Government of the United States, or

- on any of its departments. Such powers embrace only

Gajendragadkar f. those expressly granted in ~he body of the Consti-

tution and such as may be implied from those so

granted".

What is true about the powers is equally true about

the prohibitions and limitations. Besides, it is not

easy to accept the assumption that the first part of

the preamble postulates a very serious limitation on

one of the very important attributes of sovereignty

itself.

As we will point out later, it is universally

recognised that one of the attributes of sovereignty is

the power to cede parts of national territory if

neces­

sary. At the highest it may perhaps be arguable that

if the terms used in any of the articles in the Consti­

tution are ambiguous or are capable of two meanings,

in interpreting them some assistance may be sought

in the objectives enshrined in the preamble. 'I'herefore,

Mr. Chatterjee is not right in contending that the pre­

amble imports any limitation on the exercise of what

is generally regarded as a necessary and essential

attribute of sovereignty.

Then, as regards the argument that the inclusion

of the power to acquire must necessarily exclude the

power to cede or alienate, there are two obvious

answers. Article 1(3)(c) does not confer power or

authority on India to acquire territories as Mr.

Chatterjee assumes. There

can be no doubt that

under international

law· two of the essential attri­

butes of sovereignty are the power to acquire foreign

territory as well as the power to cede nation11l terri­

tory in favour of a foreign State. What Art. 1(3)(c)

purports to do is to make a formal provision for

absorption

and integration of any foreign territories

which

may be acquired by India by virtue of its

inherent right to do so. It may be that this provision

has found a place in the Constitution not in pursuance

of any expansionist political philosophy but mainly

for providing for the integration and absorption of

...

--

3 S.C.R. SUPREME COURT REPORTS 283

Indian territories which, at the date of the Consti- z960

tution, continued to be under the dominion of foreign

Tn re:

States; but that is not the whole scope of Art. 1(3)(c). BerubariUnion

It refers broadly to all foreign territd'l'ies which may & Exchange of

be acquired by India and provides that as soon as Enclaves

they are acquired they would form part of the terri--

tory of India. Thus, on a true construction of Gajendragadkar f.

Art. 1(3)(c) it is erroneous to assume that it confers

specific powers to acquire foreign territories.

The

other answer to the contention is provided by Art. 368

of the Constitution. That article provides for the

procedure for the amendment of the Constitution and

expressly confers power on Parliament in that behalf.

The power to amend Constitution must inevitably

include

the power. to amend Art. 1, and that logically

would include

the power to cede national territory in

favour of a foreign State; and if that is so, it would

be unreasonable

to contend that there is no power in

the sovereign State of India to. cede its territory and

that the power to cede national territory which is an

essential attribute of sovereignty is lacking in the case

of India. We must, therefore, reject Mr. Chatterjee's

contention

that no legislative process can validate the

Agreement in question.

What then is the nature of the treaty-making

power of a sovereign State ? That is the next

pro­

blem which we must consider before addressing our­

selves to the questions referred to us for our opinion.

As we

have already

point~d out it is an essential attri­

bute of sovereignty that a sovereign state can acquire

foreign

territory and can, in case of.necessity, cede a

part of its territory in favour of a foreign State, and

this can be done in exercise of its treaty-making

power.

Cession of national territory in law amounts

to the transfer of sovereignty over the said territory

by the owner-State in favour of another State. There

can be no doubt that such cession is possible and in­

deed history presents several examples of such

transfer of sovereignty. It is true as Oppenheim has

observed

that

" hardship is involved in the fact that

in all cases of cession the inhabitants of the territory

who remain lose their old citizenship and are handed

OY«;ir to a new sovereign whether they like it or

284 SUPREME COURT REPORTS [1960)

'9

60

not " (

1

); and he has pointed out that "it may be

In re: possible to mitigate this hardship by stipulating an

Berubari union option to emigrate within a certain period in favour

& Exchange of of the inhabitants of ceded territory as means of

Enclaves averting the charge that the inhabitants are handed

. - k over to a new sovereign against their will " (p. 553).

Ga;end1·agad ar I· B h h f h h · f · h d

utt oug rom t e uman pomt o view great ar -

ship is inevitably involved in cession of territory by

one country to the other there can be no doubt that a

sovereign

state can exercise its right to cede a part of

its territ,ory to a foreign state. This power, it may be

added, is

of course subject to the limitations which

the

Constitution of the state may either expressly or

by necessary implication impose in that behalf; in

other words, the question as to how treaties can be

made by a sovereign State in regard to a cession of

national territory and how treaties when made can be

implemented would be governed by the provisions in

the Constitution of the country. Stated broadly the

treaty-making power would have to be exercised in

the manner contemplated by the Constitution and

subject to the limitations imposed by it. Whether the

treaty made can be implemented by ordinary legis­

lation or by constitutional amendment will naturally

depend on the provisions of the Constitution itself.

We must, therefore, now turn to that aspect of the

problem and consider the position under our Consti­

tution.

In dealing with this af!pec.t we are proceeding on the

assumption that some legislation is necessary to

implement the Agreement in question. It is urged on

behalf of the Union of India that if any legislative

action is held to be necessary for the implementation

of the Agreement a law of Parliament relatable to

Art. 3 of the Constitution would be sufficient for the

purpose; and if that be so, there would be no occasion

to take any action under Art. 368 Of the Constitution.

The decision of this question will inevitably depend

upon the construction of Art. 3 itself. The learned

Attorney-General has asked us to bear in mind the

special features of the basic structure of the Consti-

(1) Oppenheim's ••International Law ''-by Lauterpacht, \Tol. I,

p. 551. (8th Ed.)

-

·~·

-

3 S.C.R. SUPREME COURT REPORTS 285

tution in construing the relevant provisions of Art. 3.

He c_ontends that the basic structure of the Consti­

tution is the same as that of the Government of India

Act, 1935, which had for the first time introduced a

federal polity in

India.

Unlike other federations, the

Federation embodied in

the said Act was not the

In

re:

Berubari Union

& Exchange of

Enclaves

result of a pact or union between separate and Gajendra?adkar ],

independent communities of States who came together

for certain common purposes

and surrendered a part

of their sovereignty. The constituent units of the

federation were deliberately created and it is signifi-

cant that they, unlike the

·units of other federations,

had no organic roots in the past. Hence, in the

Indian Constitutio~, by contrast with other Federal

Constitutions,

the emphasis on the preservation of the

territorial integrity of the constituent States is

·absent.

The makers of the Constitution were aware of the

peculiar conditions under which, and the reasons for

which,

the States (originally Provinces) were formed

and their boundaries were defined, and so they deli-

berately adopted

the provisions in Art. 3 with a view

to meet the possibility of the redistribution of the said

territories after

the integration of the Indian States.

In fact it is well-known that as a result of the States

Reorganization Act, 1956 (Act

XXXVII of 1956), in

the place of the original 27 States and one Area which

were mentioned in

Part D in the First

Schedule to the

Constitution, there are now only 14 States and 6 other

Areas which constitute the Union territory mentioned

in the First Schedule. The changes thus made clearly

illustrate the working

of the peculiar and. striking

feature

of the Indian Constitution. There may be

some force in

this contention

.. It may, therefore, be

assumed

that in construing Art. 3

'~e should take into

account

the fact that the Constitution contemplated

changes

of the territorial limits. of the constituent

States

and there was no guarantee about their terri-

torial integrity. .

Part I of the Constitution deals with the Union and

its territories, and iu a sense its provisions set out a

self-contained code in respect

of the said topic. Just

as

Part II deals with the topic of citizenship, Part I deals

37

In re:

BerulJl1ri Union

& Exchange of

Enclaves .

Gaje.ndragadkar ].

286 SUPREME COURT REPORTS [19601

with the territory of India. Art. 1 deals with the name

and territory of India. It reads thus:-

" 1. (l) India, that is Bharat, shall be a Union of

States.

(2) The States and the territories thereof shall be

as specified

in the First Schedule.

(3) The territory of India shall comprise­

( a) the territories of the States ;

(b)

the

Union territories specified in the First

Schedule ; and

(c) such other territories as may be acquired."

Art. 1 as it now stands is the result of amendments

made by the Constitution (Seventh Amendment) Act,

1956. Before its amendment, Art. 1 referred to the

territory of India as comprising the territories of the

States specified in Parts A, B and 0 as well as the terri­

tories specified in Part D of the Schedule and such of

the territories as might be acquired. Then a separate

provision had been made by Art. 243 in Part IX for

the administration of the territories specified in Part D

and other territories such as newly acquired territories

which were

not comprised in the First Schedule. The Constitution Amendments of 1956 made some import­

ant changes in Art. 1. The distinction between

Parts A, B and 0 and territories specified in Part

D was abolished and in its place came the distinc­

tion between the territories of States and the Union

territories specified in the First Schedule. In conse­

quence Art. 243 in Part IX was deleted. That is

how

under the present Article the territory of

India consists of the territories of the

t;tates, the

Union territories and such other territories as may be

acquired. We

have already referred to Art. 1(3)(c) and

we have observed that it does not purport to confer

power on

India to acquire territories; it merely

pro­

vides for and recognises automatic absorption or assi­

milation into the territory of India of territories which

may be acquired by India by virtue of its inherent

right as a sovereign State to acquire foreign territory.

Thus Art. 1 describes India as a Union of States and

specifies its territories.

Article 2 provides

that Parliament may by law

admit into the

Union or establish, new States on such

-

-

,,._

3 S.C.R. SUPREME COURT REPORTS 287

terms and conditions as it thinks fit. This Article x960

shows that foreign territories· which after acquisition

In re:

would become a part of the territory of India under Berubari Union

Art. 1(3)(c) can by law be admitted into the Union <!>' E:>:chang• of

· under Art. 2. Such territories may be admitted into Enclaves

the Union or may be constituted into new States on .-

such terms and conditions as Parliament may thinkGajendragadkar f.

fit; and as we shall presently point out such territories

can also be dealt with by law under Art. 3(a) or (b).

The expression "by law" used in Arts. 2 and 3·in

this connection is significant. The acquisition of

foreign territory by India in exercise of its inherent

right as a sovereign State automatically makes the

said territory a part of the territory of India. After

such

territory is thus acquired and factually made a

part of the territory of India the process of law may

assimilate it either under Att. 2 or under Art. 3 (a)

or (b).

As

an illustration of the procedure which can be

adopted by Parliament in making a law for absorbing

newly acquired

territory we may refer to the

Chander­

nagore Merger Act, 1954 (Act XXXVI of 1954), which

was passed on September 29, 1954, a.nd came into

force

as from October 2, 1954. Chandernagore,

whicih

was a French possession, was declared a free city, and

in June 1946'the French Government, in agreement

with the Government oflndia, stated that it intended

to leave the people of the French establishments in

India a right to pronounce on their future fate and

future status. In pursuance of this declaration a

referendum was held in Chandernagore in 1949,

and in

this referendum the citizens of Chandernagore voted in

favour of the merger of the territory with India.

Consequently, on May 2,

1950, the President of the

French Republic effe~ted a de facto transfer of the

administration of Chandernagore to India, and as from

that date the Government of India assumed control

and jurisdiction over Chandernagore under s. 4 of the

Foreign Jurisdiction Act, 1947 (Act 47 of 1947). Rele­

vant notification was issued by the Government of

India under the said section as a result of which cer­

tain Indian laws were made applicable to it. The said

notification also provided that the corresponding

288 SUPREME COVRT R.EPORTS [1960]

1~6° French laws would cease to apply with effect from

In ", May 2, 1950. This was followed by the treaty of ces-

Beruba.i Union sion which was signed at Paris and in due course on

.,. Exchange of June 9, 1952, Chandernagore was transferred de jure

Enclav" to the Government of India on the ratification of the

- said treaty. The result was Chandernagore ceased to

Gojn•d•agadkar J. be a French territory and became a part of the terri­

tory of India ; and the Foreign Jurisdiction Act was

no longer applicable to it. Article 243(1) which was

then

in operation applied to Chandernagore as from June 9,

1952,

and in exercise of the powers conferred under

Art. 243(2) the President promulgated a regulation for

the administration of Chandernagore which came into

force from June

30, 1952. The Government of India

then ascertained the wishes of the citizens of Chander­

nagore by appointing a commission of enquiry, and

on receiving the commission's report that the people

of Chandernagore were almost unanimously in favour

of merging with \Vest Bengal, the Government intro­

duced in Parliament the Chandernagore Merger Act

in question. After this Act was passed Chandernagore

merged with

the State of West Bengal as from

Octo­

ber 2, 1954. This Act was passed by Parliament under ·

Art. 3 of the Constitution. As a result of this Act

the boundaries of 'Vest Bengal were altered under Art.

3(d) and bys. 4 the First Schedule to the' Constitution

was modified. \Ve have thus briefly refel'l'ed to the

history of the acquisition and absorption of Chander­

nagore and its merger with West Bengal because it

significantly illustrates the operation of Art. l(3)(c) as

well as Art. 3{b) and (d) of the Constitution.

That takes us to Art. 3 which deals with the topic

of formation of new States and alteration of areas,

boundaries or names

of existing

States; but before we

construe Art. 3

it would be

convflnient to refer to Art. 4.

Article 4 reads

thus

:-

" 4. (1) Any law referred to in article 2 or article

3 shall contain such provisions for

the amendment

of the First Schedule and the Fourth Schedule as

may be necessary to give effect to the provisions of

the law and inay also contain.such supplemental,

incidental

and consequential provisions (including

provisions as to representation

in

Parliament and

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3 S.C.R. SUPREME COURT REPORTS 289

in the Legislature or Legislatures of the State or

States affected

by such law) as Parliament may deem

necessary.

(2) No such law as aforesaid shall be deemed to be

an amendment of this Constitution for the purposes

of article 368.

"

In Ye:

Berubari Union

&-Exchange of

Enclaves

The effect of Art. 4 is that the laws relatable to Art. 2 Gajmdragadkar J.

or Art. 3 are not to be treated as constitutional amend-

ments for the purpose of Art. 368, which means that

if legislation is competent under Art. 3 in respect of

the Agreement, it would be unnecessary to invoke Art.

368. On the other hand, it is equally clear that if

legislation in respect of the relevant topic is not com-

petent under Art. 3, Art. 368 would inevitably apply.

The crux .of the problem, therefore, is :

Can Parliament

legislate in regard

to the Agreement under Art. 3 ?

Let us now read Art. 3. It reads as follows :­" Art. 3. Parliament may by law-

( a) form a new State by separation of territory

from any State or by uniting two or more States or

parts of States or by uniting any territory to a part

of any State ;

(b) increase the area of any State;

( c) diminish the area of any State;

(d) alter the boundaries of any State;

(e) alter the name of any State;

Provided that no Bill for the purpose shall be

introduced in either House

of Parliament except on

the recommendation of the President and unless,

where

the proposal contained in the Bill affects the

area, boundaries or name of any of the

·states ...

the Bill has been referred by the President to the

Legislature of that State for expressing its views

thereon within such period as may be specified in

the reference or within such

further period as the

President

may allow and the period so specified

or allowed has

expired."

Prima facie ·Art. 3 may appear to deal with the

problems which would arise on the reorganisation of the

constituent States of India on linguistic or any other

basis; but that is not the entire scope of Art. 3.

Broadly stated it deals with the . internal adjustment

inter se of the territories of the constituent States of

In re:

Be"rubari Union

©-Exchtuige of

Enclaves

Gajendragadkar J

290 SUPREME COURT REPORTS [1960)

India. Article 3(a) enables Parliament to form a new

State and this can be done either by the separation

of the territory from any State, or by uniting two or

more States or parts of States, or by uniting any terri­

tory to a part of any State. There can be no doubt

that foreign territory which after acquisition becomrs

a part of the territory of India under Art. 1(3)(c) is

included

in the last clause of Art. 3(a) and that such

territory may, after its acquisition, be absorbed in the

new

State which may be formed under Art. 3(a).

Thus Art. 3(a) deals with the problem of the formation

of a new State and indicates the modes by which a

new State can be formed.

Article 3(b) provides

that a Jaw may be passed to

increase the area of any

State. This increase may be

incidental to the reorganisation of States in which

case what is added to one State under Art. 3(b) may

have been taken out from the area of another State.

The increase in the area of any State contemplated by

Art. 3(b) may also be the result of adding to any State

any part of the territory specified in Art. 1(3)(c).

Article 3(d) refers to

the alteration of the boundaries

of any

State and such alteration would be the conse­

quence of any of the adjustments specified in Art. 3(a),

(b)

or (c). Article 3(e) which refers to the alteration

of the name of any

State presents no difficulty, and in

fact has no material bearing on the questions with

which we are concerned. We have yet to consider

Art. 3(c)

the construction of which will provide 1he

answers

to the questions under reference; but before

we

interpret Art. 3(c) we would like to refer to one

aspect relating to the said Article considered as a

whole.

It is significant that Art. 3 in terms does not refer

to the

Union territories and so, whether or not they

are included in the last clause of Art. 3(a) there is ·no

doubt that they are outside the purview of Art. 3(b ),

(c), (d) and (e). In other words, if an increae.e or

diminution in the areas of the Union territories is

contemplated or the alteration of their boundaries or

names is proposed, it cannot be effected by law relatable

to Art. 3. This position would be of considerable

assistance

in

intcrpreUng Art. 3(o).

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3 S.C.R. SUPREME COURT REPORTS 291

Article 3(c) deals with the problem of the diminution I9

60

of the area of any State. Such diminution may occur

In re.:

where the P!trt of the area of a State is taken out and Beruba•i Union

added to another State, and in that sense Arts. 3(b) &-Exchange of

and 3( c) may in some cases be said to be co-related ; Enclaves

but does Art. 3(c) refer to a case where a part of the G . --dk

area of a State is taken out of that State and is not a;endraga "' J.

added to any other State but is handed over to a

foreign State? The learned Attorney-General contends

that the words used in Art. 3(c) are wide enough to

include the case of the cession of national territory in

favour

of a foreign country which causes the diminu-

tion

of the area of the

State in question. We are not

impressed by this argument. Prima facie it appears

unreasonable to suggest

that the makers of the Constitution wanted to provide for the cession of

national territory under Art. 3(c). If the power tci

acquire foreign territory which is an essential attribute

of sovereignty is not expressly conferred by the

Constitution there is no reason why

the power to cede

a

part of the national territory which is also an essential

attribute of sovereignty should have been provided

for

by the Constitution. Both of these essential

attributes of sovereignty are outside the Constitution

and can be exercised by India as a sovereign

State.

Therefore, even if Art. 3(c) receives the widest inter-

pretation it would be difficult to accept the argument

that it covers a case of cessfon of a part of national

territory in favour of a foreign State. The diminution

of the area of any State to which it refers postulates

that the area diminished from the State in question

should

and must continue to be a part of the territory

of India ; it may increase the area of any other

State

or may be dealt with in any other manner authorised

either

by Art. 3 or other relevant provisions of the

Constitution, but it would not cease to be a part of

the territory of India. It would be unduly straining

the language of Art. 3(c) to hold that by implication

it provides for cases of cession of a part of national

territory. Therefore,

we feel no hesitation in holding

that the power to cede national territory cannot be

read in1Art.

3(c) by implication.

292 SUPREME COURT Rh:PORTS [1960)

1960 There is another consideration which is of consider-

able importance in construing Art.

3(c). As we have

8

,,,,~;,;~;.,

0

• already indicated Art. 3 does not in terms refer to the

& Exchange of Union territories, and there can be no doubt that

Enclaves Art. 3( c) does not cover them; and so, if a part of the

Union territories has to be ceded to a foreign State no

Gaj,,,drnpadkar .f. law relatable to Art. 3 would be competent in respect

of such cession If that be the true position cession

of a part of the Union territories would inevitably have

to be implemented by legislation relatable to Art 368;

and that, in our opinion, strongly supports the construc­

tion which we are inclined to place on Art. 3(c) even

in respect

of cession of the area of any

State in favour

of a foreign State. It would be unreasonable, illogical

and anomalous to suggest that, whereas the cession of

a part of the Union territories has to be implemented

by legislation relatable to Art. 368, cession

of a part

of the

State territories can be implemented by legisla­

tion under Art. 3. We cannot, therefore, accept the

argument of the learned Attorney-General that an

agreement which involves a· cession of a part of the

territory of India in favour of a foreign State can be

implemented by Parliament by passing a law under

Art 3 of the Constitution. We think that this

conclu­

sion follows on a fair and reasonable construction of

Art. 3 and its validity cannot be impaired by what the

learned Attorney-General has described as the special

features

of the federal Constitution of India.

In this connection the learned Attorney -General has

drawn our attention to the provisions of Act

XL VII

of 1951 by which.the boundaries of the State of Assam

were altered consequent on

the cession of a strip of

territory comprised in that

State to the Government

of Bh~tan. Section 2 of this Act provides that on

and from the commencement of the Act the territories

of the State bf Assam shall cease to comprise the strip

of territory specified in the Schedule which shall be

ceded

to the Government of Bhutan, and the

bound­

aries of the State of Assam shall be deemed to

have been altered accordingly. Section 3 provides for

the consequential amendment of the first. paragraph

in Part A of the First Schedule to the Constitution

relating

to the territory of Assam. The argument is

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3 S.C.R. SUPREME COURT REPORTS 293

that when Parliament was .dealing with the cession of ry

6

•

a strip of territory which was a part of the State of In,.:

Assam in favour of the Government of Bhutan it has Berubari Union

purported to pass this Act under Art. 3 of the Constitu-· .i;. Exchange of

tion. It appears that the strip of territory which was Enclaves

thus ceded consisted of about 32 sq. miles of the -

territory in the Dewangiri Hill Block being a part of Gajemtragadkar J.

Dewangiri on the extreme northern boundary of

Kamrup District. This strip of territory was largely

covered

by forests and only sparsely inhabited by

Bhotias. The learned Attorney-General has not relied

on this single

statute as showing legislative practice.

He has only cited this as an instance where the

Parlia-

ment has given effect to the cession of a part of the

territory of Assam in favour of the Government of

Bhutan by enacting a law relating to Art. 3 of the

Constitution. We do not think that this instance can

· be of any assistance in construing the scope and effect

of the provisions of Art. 3.

Therefore our conclusion is that it would not be

competent

to Parliament to make a law relatable to

Art. 3 of the Constitution for the purpose of

implement­

ing the Agreement.· It is conceded by the learned

Attorney-General

that this conclusion must inevitably

mean

that the law necessary to implement the

Agree­

ment has to be passed under Art. 368.

Art. 368 reads

thus:-"Art. 368. An amendment of this Constitution

may be initiated only by·the introduction of a Bill

for

the purpose in either House of Parliament, and

when the

Bill is passed in each House by a majority

.... of the total membership of that House and by a

/ -

. majority of not less than two-thirds of the members

of that House pr~sent and voting, it shall be

presented

to the President for his

asslilnt and upon

such assent being given

to the Bill, the

Comititu­

tion shall stand amended in accordance with the

terms of the Bill :

Provided

that if such amendment seeks to make any

changein-

(a) article 54, article 55, article 73, article 162

or article 241,

or

1960

In f't:

Berubari Union

1!i-E:rchange of

Enclaves

Gajendtagadkar J.

294 SUPREME COURT REPORTS [1960]

(b) Chapter IV of Part V, Chapter V of Part VI,

or Chapter I of Part XI, or

(c) any of the Lists in ·the Seventh Schedule, or

(d) the representation of States in Parliament, or

( e) the provisions of this article,

the amendment shall also require to be ratified by

the Legislatures of not less than one-half of the

States•*• by resolutions to that effect passed by

those Legislatures before the Bill making provision

for such

amendment is presented to the

Presid~nt

for assent."

We have already held that the Agreement amounts

.to a cession of a part of the territory of India in

favour of Pakistan; and so its implementation would

naturally involve the alteration of the content of and

the consequent amendµient of Art. 1 and of the rele­

vant part of the First Schedule to the Constitution,

because such implementation would necessarily lead

to

the diminution of the territory of the

Union of India.

Such an amendment can be made under Art. 368.

This position is

not in dispute and has not been

challenged before us ; so

it follows that acting under

Art. 368 Parliament may make a law to give effect to,

and implement, the Agreement in question covering

the cession of a part of Bernbari

Union No. 12 as well

as some of the Cooch-Behar Enclaves which by

exchange are given to Pakistan. Parliament may,

however, if it so chooses, pass a law amending Art. 3

of the Constitution so as to cover cases of cession of

the territory of India in favour of a foreign State. If

such a law is passed then Parliament may be compe­

tent to make a law under the amended Art. 3 to

implement the Agreement in question. On the other

hand, if the necessary law is passed under Art. 368

itself that alone would be sufficient to implement the

Agreement.

It would not be out of place to mention one more

point before we. formulate our opinion on the questions

referred

to us. We have already noticed that under

the proviso to Art. 3 of the Constitution it is prescrib­

ed

that where the proposal contained in the Bill

affects

the area, boundaries or name of any of the

States, the Bill has to be referred by the President to

-

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>

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3 S.C.R. SUPREME COURT REPORTS 295

the Legislature of that State for its views thereon z960

within such period as is therein prescribed. . It has

In re:

been urged before us by the learned Attorney-Berubari Union

General that if it is held that Parliament must act & Exchang• of

under Art. 368 and not under Art. 3 to implement the Enclaves

Agreement, it would in effect deprive the Legislature -···

of West Bengal of an opportunity to express its views Gajendragadkar J.

on the cession of the territory in question. That no

doubt is true; but, if on its fair and reasonable

construction Art. 3 is inapplicable

this incidental

consequence

cannot be avoided.

On the other hand,

it is clear that if the law in regard to the implemen-

tation of the Agreement is to be passed under Art. 368

it has to satisfy the requirements prescribed by the

said Article; the Bill has to be passed in each House

by a majority of the total membership of the House

and by a majority of not less than two-thirds of the

House present and voting; that is to say~ it should

obtain

the concurrence of a substantial section of the

House which may normally mean the consent of the

major parties of the House, and that is a safeguard

provided

by 'the Article in matters of this kind.

In this connection it may incidentally be pointed

out that the amendment of Art. 1 of the Constitution

consequent upon

the cession of any part of the territory

of India in favour of a foreign

State does not attract

the sateguard prescribed by the proviso to Art. 368

because neither Art.

1 nor Art. 3 is included in the

list

q_f entrenched provisions of the Constitution

enumerated in

the proviso. It is not for us to enquire

or consider whether

it would not be appropriate to

include

the·said two Articles under the proviso. That

is a matter for the Parliament to consider and decide,

We would accordingly answer the three questions

referred

to us as follows :-

Q. 1. Yes.

,

Q. 2. (a) A law of Parliament relatable to Art. 3

of the Constitution would be incompetent ;

_ (b) A law of Parliament relatable to Art. 368 ,

Qf the Constitution is competent and necessary;

(c) A law of Parliament relatable to both

Art. 368 and Art. 3 would be necessary only if

Parliament chooses first to pass it 111.w amending Art. 3

IH fd.'

B1rt4bori Union

c£. E#changd of

Encloues

z960

Mllrch .15.

296 SUPREME COURT REPORTS [1960)

as indicated above ; in that case Parliament may

have to pass a law on those lines under Art. 368 and

then follow it up with a law relatable to the amendeJ

Art. 3 to implement the agreement.

Q. 3. Same as answers (a), (b) and (c) to Question 2.

Reference answered accordingly.

CHARANDAS HARIDAS AND ANOTHER

v.

THE COMMISSIONER OF INCOME-TAX,

BOMBAY NORTH, KUTCH, SAURASHTRA

AND AHMEDABAD & ANOTHER

(S. K. DAB, J. L. KAPUR and M. HIDAYATULLAH, JJ.)

Income-tax-Income from managing agency-Karla of Hindu

undivided family becoming partner of managing agency firm-Income

therefrom assessed as family income-Subsequent partition of managing

agency comtnission-Claim for assessnzen-t as 1"11dividual income of

divided members.

C, who was the Karta of the Hindu undivided family con­

sisting of his \'ifC, three sons and himself, was a partner in six

managing agency firms in six Mills, and the income received by

him as

partner was being assessed as that of the Hindu undivided

family for

the purposes of income-tax.

On December 31, 1945, C,

acting for his three minor sons and himself, and his wif~ entered

into

an oral agreement for a partial partition,

\Vi'.th effect fron1

January 1, 1946, by which C gave a certain share to his daughter

in the managing agency commission from two of the six managing

agencies held

by the family and the balance together with the

shares in the other managing agencies was divided into five equal

shares between

C, his wife and sons. The agreement was subse­

quently recorded in a document <lated September

II, 1946, which

recited, inter alia:

"By this partition we decided that \Vhatever

commission fell due till 31-12-45 and which is received after

31-12-45 should be kept joint and in r:espect of the commission

which accrues from 1-1-46 and received

after that date each of

us become absolute owner of his one-fifth share

and therefore

from

the date, i.e., from 1-1-46 these commissions cease to be the

joint property of our

family." For the assessment years 1947-48

and 1948-49, C claimed that the incoine from the managing

agency firms should no longer

be treated as the income of the

Hindu undivided family but as the separate income of the divided

members,

)Jut the Income-tax authorities rejected the claim on the

grounds that by the document in question the division was of

th• inrome and not of the assets from which the income wa

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